Sammamish Home Owners November Update
Here is your November update on lake-related news in Sammamish. This will start with brief summaries of four matters, but you are encouraged to read on for more insight.
The federal case
Our quiet title action in federal court concerning ELST ownership continues to be disappointing. As mentioned in our August Update, on August 3rd the 9th Circuit Court of Appeals issued a ruling that rejected our arguments and fully supported King County’s claim of rights to the entire ELST corridor. Our attorneys promptly filed a Request for Rehearing. On September 11th the 9th Circuit issued a denial of that request. This means our only recourse is to appeal to the US Supreme Court, which we intend to do. The instrument for doing that is a “petition for certiorari”, and the deadline for submitting that is December 10th.
Of course, SHO will continue to incur costs to pursue this action on your behalf. If you have not already contributed the minimum requested ($500) please do so. Mail your check to:
SHO
167 E Lk Sammamish Sh Ln NE
Sammamish, WA 98074
This is a protracted battle and SHO’s treasury is getting low. If you have any doubts as to the importance of staying the course, please read King County’s intentions below.
State Superior Court case in King County
This is the lawsuit filed in 2015 by 13 trailside property owners seeking quiet title relief for their homes and other property that King County claims are on public land. Eight of those owners have homes either partially or completely located in the former rail corridor. These folks are aggressively defending their property rights. The trial date is currently February 11th. The expectation is that the County will file a Motion for Summary Judgment in December in which they will argue that state property rights laws do not apply and the corridor as deeded from BNSF to the County is federally protected.
Included in this case is a counterclaim by the County to eject or require rent or special use fees for all structures or improvements located in the corridor, which they assert are illegal (see King County’s intentions below).
SHO is not involved in that litigation, but strongly supports those property owners in principle.
Shoreline Hearings Board
The SHB recently ruled on citizen and King County appeals of the City of Sammamish’s denial of a Shoreline Substantial Development Permit for the remaining, middle segment (2B) of the ELST. The citizens – trailside property owners – were not asking that the permit be granted, but argued that the conditions the city placed on the granting of such permit did not take into account ownership rights these parties believe they have. The county, of course, simply wanted their permit to be granted unconditionally.
Not surprisingly, the county got what it wanted. On November 7th the SHB actually overruled the hearing examiner’s denial of the SSDP and directed the City to issue the permit.
Meanwhile construction of the segment 2B remains on hold pending other permits the county needs to obtain. The citizens who were plaintiffs before the SHB will likely appeal the SHB decision to the next court. The City of Sammamish also has the opportunity to appeal the decision.
Willowmoor Project
The “Willowmoor Project” to reconfigure the “transition zone”, where Lake Sammamish outflow drops into the Sammamish River, continues in the planning stage. On October 4th two meetings were held in Marymoor Park. One was the Stakeholder Advisory Committee (SAC) meeting at which King County reported on progress and presented results of a preliminary analysis of the use of a “dynamic weir” to actively control lake levels during winter storm series and low water in late summer. The other meeting was open to the general public and was to solicit citizen input as to what recreational considerations should go into transition zone design. As of this time the results of that meeting have not been reported.
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Below is more information on two of the above matters.
Federal case
Our attorneys concur that as things stand, this matter represents a gross miscarriage of justice. The ruling of the Federal District Court in Seattle, effectively giving King County ownership of the entire rail corridor, flies in the face of roughly fifty other rulings across the country. Those rulings found the rails-to-trails act only granted a jurisdiction a surface easement for a trail, not the right to dictate use of an entire rail corridor as if they owned it.
There is no guarantee that the US Supreme Court will hear our case, but there are a couple factors that our attorneys say may prompt the court to take this one. One is that there have not been any rails-to-trails cases brought before that court for many years. The other is that the 9th Circuit Court’s ruling conflicts with that of the other circuit courts, and these kinds of conflicts are something the Supreme Court feels compelled to remedy.
For more on the impact on trailside property owners if the federal district court’s ruling is allowed to stand, see King County’s intentions below.
Willowmoor Project
SAC members representing the lakeshore community report that the dynamic weir analysis is not encouraging as regards the ability to control high water events and prevent damage to docks, shorelines, etc.
There are two key factors at play. King County is responsible for maintenance of the transition zone (TZ), and reduced vegetation maintenance in recent years restricted outflow and effectively raised the average level of the lake. The other factor is that drainage from the Bear Creek Basin enters the river via Bear Creek just downstream of the TZ, and due to development in that basin that outflow has increased to the point where, combined with the flow from the lake, the downriver capacity is exceeded. In extreme storm periods that extra flow actually restricts drainage from the lake and aggravates Sammamish high water events.
A dynamic weir would allow the level of the lake to be lowered in advance of forecast storm events, allowing the lake to store some of the extra water without going as high. But the SAC members representing the lakeshore say the weir analysis report showed only minimal reduction in lake level increases by this means. The weir analysis is preliminary, however, and a revised analysis is forthcoming that is based on computer modeling from observational data.
King County’s intentions (ELST)
King County is taking an extreme position on their right to make demands of adjacent property owners. Those intentions are spelled out in an “Answer and Counterclaim” filed by the County against the 13 trailside residents mentioned above. In that filing the County requested the court to dismiss that case, offering various reasons. (For the full text of that document, see posting dated August 24, 2015 on SHO website at www.sammamishhomeowners.org )
The case is now in Washington State Superior Court. But the County’s arguments are very revealing of what its true intentions are, not just as regards these plaintiffs but for all of us with property adjacent to the ELST. The following are excerpts from the referenced Answer and Counterclaim that convey this.
(Note that the use of the word “admits” is legalese and should be thought of as “asserts”.)
King County admits that it possesses property rights under the specified deeds that
coverthe entirety of the ELSRC and grant King County exclusive control over the ELSRC,
including the right to allow public use of the ELSRC.
King County admits that some or all of plaintiffs have constructed walkways, driveways,
parking areas, landscaping systems, utilities and have planted landscaping within the
ELSRC.
King County owns fee title or exclusive railroad easement rights characterized as a
“quasi-fee” in the portions of the ELSRC that are adjacent to plaintiff’s property.
Plaintiffs have interfered with King County’s property rights in the ELSRC by erecting
and maintaining various unauthorized improvements that impede King County’s access to
its property and prevent public enjoyment.
Under RCW 7.28, title to the disputed portion of property should be quieted in King
County.
Plaintiffs should be required to remove any unauthorized improvements erected and
maintained within the ELSRC.
Plaintiffs should be required to pay current and back rent and/or special use fees for
all unauthorized uses of the ELSRC.
As mentioned, some of these 13 plaintiffs even have portions of their houses, constructed with all required permits, that are within the corridor. The County says that doesn’t matter, that they must get “special use permits” and pay fees to keep them there. And like many of us, they have gardens, parking, landscaping, and other enhancements within the former rail corridor that will either have to be removed or rented from the County.
This is the future we all face if trailside property owners do not prevail in these court actions.
SHO Board of Directors
Please send your contributions to SHO at the following address:
Registered Agent, Sammamish Home Owners
167 E Lk Sammamish Sh Ln NE
Sammamish, WA 98074